Allahabad High Court
Jai Kumar Mishra vs Smt. Sweta Malhotra And Others on 11 January, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 1. Case :- WRIT - A No. - 35118 of 2005 Petitioner :- Jai Kumar Mishra Respondent :- Smt. Sweta Malhotra And Others Petitioner Counsel :- Pramod Kumar Jain Respondent Counsel :- Kshitij Shailendra With 2. Case :- WRIT - A No. - 47924 of 2005 Petitioner :- Shankar Sharma Respondent :- Smt. Shweta Mehrotra And Others Petitioner Counsel :- M.A. Qadeer Respondent Counsel :- S.C.,Kshitij Shailendra 3. Case :- WRIT - A No. - 42865 of 2005 Petitioner :- Narendra Kumar Respondent :- Smt. Shweta Malhotra And Another Petitioner Counsel :- Atul Dayal Respondent Counsel :- S.C.,Kshitij Shailendra Hon'ble Sudhir Agarwal,J.
1. Heard Sri P.K. Jain, learned Senior Advocate assisted by Sri Amitabh Agrawal, Advocate for petitioner in Writ Petition No. 35118 of 2005 (hereinafter referred to as the "First Petition"); Sri Shamim Ahmad, Advocate for petitioner in Writ Petition No. 47924 of 2005 (hereinafter referred to as the "Second Petition"); and, Sri Atul Dayal, Advocate of petitioner in Writ Petition No. 42865 of 2005 (hereinafter referred to as the "Third Petition"). Sri Kshitij Shailendra, Advocate has put in appearance on behalf of respondents no. 1 (the main contesting respondent) in all the writ petitions.
2. The dispute relates to shop No. 20, which is a two tier shop having one Chabutara in its front. It forms part of a building known as Mishra Building, bearing Municipal No. 7/16/5 situate at Station Road, Moradabad.
3. The petitioner, in First Petition, claims to be the landlord of building in dispute. It was in the tenancy of Nagar Nigam, Moradabad, running Octroi office and after abolition of Octroi, for other administrative works. Sri Vikram Malhotra, husband of respondent no. 1 and some others moved allotment application claiming that disputed accommodation is vacant but those applications were rejected by Rent Control and Eviction Officer, Moradabad (hereinafter referred to as the "RCEO") on 05.04.1999 mentioning that Nagar Nigam, Moradabad, the sitting tenant in the accommodation in dispute, have stake their claim stating that they are continuously occupying disputed accommodation and it is in their tenancy, hence there is no vacancy.
4. After sometime respondent no. 1 herself moved an application dated 26.04.2002 seeking allotment of aforesaid shop. She claimed that shop is lying vacant and also mentioned the name of landlord as that of petitioner, namely, Jai Kumar Mishra and two others, i.e., Sri Vijay Kumar Mishra and Sri Ajay Kumar Mishra.
5. The aforesaid application was registered on 28.04.2002 and Rent Control Inspector was directed to submit report which was submitted on 24.05.2002 (Annexure-3 to the writ petition). Though inspection was made without any notice to petitioner-landlord but after getting knowledge of said proceedings, he filed objections thereto. The RCEO vide order dated 14.08.2002 declared vacancy, whereagainst again petitioner filed objection dated 19.08.2002 but the same was rejected vide order dated 28.08.2002 and disputed accommodation was allotted to respondent no. 1 vide allotment order dated 10.02.2004. The petitioner, two prospective allottes and Nagar Nigam, all filed revisions. The Special Judge, E.C. Act, Moradabad took up all the four revisions together and vide order dated 30.03.2005 rejected the same.
6. A counter affidavit has been filed in First Petition by respondent no. 1 wherein she has admitted to have submitted allotment application dated on 26.04.2002. According to her the said that said application was received by RCEO on 26.04.2002 and not on 28.04.2002. She further said that notice was issued to petitioner on 04.07.2000, whereagainst he filed objection on 20.10.2000. She also stated the date of report submitted by Rent Control Inspector being 24.05.2000 and filed copies of aforesaid three documents as Annexures CA-5, 6 and 7 to the counter affidavit. The case number registered before RCEO is mentioned as 09/2000. It is said that disputed shop was vacated by Nagar Nigam and the orders passed by RCEO are valid and in accordance with law. It is really strange as to how an application filed in April, 2002 can be registered in 2002 and inspection report and petitioner's objection can be obtained in May 2000 and October, 2000.
7. Writ Petitions No. 47924 of 2005 and 42865 of 2005 have been filed by two prospective allottees/applicants, namely, Shankar Sharma son of Late Triloki Nath Sharma and Narendra Kumar son Sri Rohtash Kumar, who are seeking allotment of shop in dispute in their favour. Both have challenged allotment order dated 10.02.2004 as also the revisional order dated 30.03.2005.
8. One of the interesting aspect in all the three cases is that allotment applications have been submitted by petitioners in Second and Third Petitions and respondent no. 1 in First Petition in 2002 but they have been considered in a case registered as 09 of 2000. The inspection report as also the objections are also of 2000 and 2001.
9. The photocopy of application submitted by respondent no. 1 in First Petition is Annexure-2 to the writ petition. On page 23 of paper book, the printed/typed date is 26.04.2002. Similarly the allotment application of Sri Shankar Sharma is dated 09.11.2002 (Annexure-3 to Second Petition) and that of Narendra Kumar is dated 28.07.2000 (Annexure-1 to Third Petition).
10. It has, however, been explained in Second and Third Petitions of Sri Shankar Sharma and Sri Narendra Kumar that one application was filed by Smt. Sweta Malhotra on 27.09.1999 and thereafter she filed another application in April, 2002. The reason for filing two applications by Smt. Sweta Malhotra is not known. In the counter affidavit filed in First Petition on behalf of respondent no. 1, she has stated about only one application, i.e., dated 26.04.2002.
11. Be that as it may, it cannot be doubted that proceedings for declaring vacancy in shop in dispute were earlier initiated and ended in order dated 05.04.1999 passed by Sri Avinash Gaur, the then RCEO, Moradabad. He observed that shop is still in possession and tenancy of Nagar Nigam Moradabad, hence neither there existed any vacancy nor any possibility of vacancy.
12. Fresh proceedings were registered by RCEO as Case No. 09 of 2000 under Section 16(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972"). It is not in dispute that a report was submitted by RCEO on 24.05.2000 which has been made basis of order declaring vacancy and subsequent allotment order impugned in these petitions. The copy of report is Annexure-3 to the First Petition and a certified copy thereof is on record as Annexure-7 to the counter affidavit of respondent no. 1 in the above writ petition. The report refers to application of Smt. Seema Malhotra whereupon the RCEO sought report. The building of which the shop in dispute forms part, was visited by Inspector in presence of following:
(1) Sri Anil Maseeh son of Sri Harish Chandra Maseeh, resident of Kisna Compound Company Bagh, Moradabad;
(2) Sri Mahendra Nath Puri, Station Road, Moradabad;
(3) Sri Chandra Pal Singh son of Sri Kanta Singh, resident of Burtipur Inayatpur, P.S. Asmauli Sambhal, Moradabad;
(4) Sri Sher Singh, Station Road Moradabad; and, (5) Sri Balveer Singh, Station Road Moradabad.
13. The Inspector said that shop was locked and on inquiry made from Sri Ajay Kumar Mishra, he told, that, it is in the tenancy of Nagar Nigam, which is still continuing and similar statement was given by an employee of Nagar Nigam also, when contacted. It is pursuant to aforesaid report dated 24.05.2000, Sri Govardhan Lal, the then RCEO, Moradabad passed an order on 04.07.2000 issuing notice to Sri Jai Kumar Mishra, the petitioner; Chief Executive Officer, Nagar Nigam, Moradabad; and, Smt. Seema Malhotra fixing 19.07.2000. Without ensuring about service of notice on landlords, Govardhan Lal, the then RCEO, Moradabad passed a short order dated 14.08.2002 declaring vacancy in the shop in dispute. The order reads as under:
"loZlk/kkj.k dks ,rn~}kjk lwfpr fd;k tkrk gS fd LVs'ku jksM viksftV jsyos LVs'ku feJk fcfYMax fLFkr nqdku tks uxj fuxe] eqjknkckn dh fdjk;snkjh esa Fkh] dh fjDrrk /kkjk% 12 ¼1½ vkQ ;w0ih0 jsUV dUVksy ,dV] 13 vkQ 1972 ds rgr ?kksf"kr dh tkrh gS] mDr nqdku ds ySUMykMZ Jh t; dqekj feJk vkfn gSaA fjyht @ vkcaVu izkFkZuk i=ksa ds fuLrkj.k gsrq fnukad 19-8-2002 fu;r dh tkrh gSA bPNqd O;fDr vius izkFkZuk i= mDr fnukad dks vijkUg 2-00 cts rd v/kksgLrk{kjdrkZ ds U;k;ky; esa izLrqr dj ldrs gSaA"
"It is hereby notified to the general public that the shop located in Mishra Building on Station Road opposite to Railway Station which was under tenancy of Municipal Corporation, Moradabad is declared to be vacant under Section 12 (1) of U.P. Rent Control Act, No. 13 of 1972. Landlords of the aforesaid shop are Sri Jai Kumar & Others. For disposal of release/allotment applications, 19.08.2002 is fixed. Those interested may submit their applications on the aforesaid date by 2:00 PM before the Court of undersigned."
(English translation by the Court)
14. Thereafter when vacancy was notified, applications of all the prospective allottees were considered and impugned order of allotment was passed on 10.02.2004.
15. It is thus evident that before making inspection, no information was given to any of the landlords about proposed inspection. The inspecting authority also did not have any occasion to find out, whether belongings of tenant, (Nagar Nigam, Moradabad) were removed from shop in dispute and it was lying vacant. This is evident from inspection report submitted by Inspector on 24.05.2002, relevant extract whereof reads as under:
^^iz'uxr nqdku ,d [kuh Hkw&Hkkx ij cgqr iqjkuh fufeZr gSA tks jsUV dUV~ksy dh ifjf/k esa vkrh gSA iz'uxr nqdku tkap ds le; cUn feyh ftlds ySUM yksMZ Hkh lat; dqekj feJk] Jh txnh'k izlkn feJk fuoklh feJk fcfYMax LVs'ku jksM eqjknkckn crk;s x;sA vkSj ;g Hkh crk;k x;k fd iz'uxr nqdku uxj fuxe dh fdjk;snkjh esa :0 15@& egkokj ij Fkh ftlesa mudk paqxh dk dk;kZy; FkkA vkSj iz'uxr nqdku ds ekfyd Jh lat; dqekj feJk ds lEidZ djus ij muds }kjk crk;k x;k fd mDr nqdku vHkh Hkh uxj fuxe eqjknkckn dh fdjk;snkjh esa py jgh gSA vkSj mUgha dk rkyk iM+k gqvk gSA ijUrq mUgksaus bl ckor dksbZ Hkh fyf[kr C;ku nsus ls bUdkj dj fn;kA esjs }kjk iz'uxr nqdku dh fdjk;snkjh ds lEcU/k esa uxj fuxe ds dk;kZy; esa tkudkjh yh xbZ dk;kZy; esa mifLFkr deZpkjh us crk;k fd iz'uxr nqdku uxj fuxe dh fdjk;snkjh esa py jgh gSA blesa paqxh dk;kZy; ;k tc ls pqaxh lekIr gqbZ gSA rc ls iz'uxr nqdku esa uxj fuxe dk rkyk iM+k gSA bl ckor C;ku fyf[kr nsus ls bUdkj dj fn;kA vr% mijksDr fLFkfr esa nqdku dh fjDrrk ds lEcU/k esa lEcfU/kr i{kksa dks cqyk dj lqu fy;k tk;sA"
"The shop in question is constructed over one-sided piece of land since long which comes within the ambit of Rent Control. At the time of inspection, the shop in question was found closed and Sri Sanjay Kumar Mishra & Sri Jagdish Prasad Mishra residents of Mishra Building, Station Road, Moradabad were told to be its landlords. It was also told that the shop in question was under tenancy of Municipal Corporation @ Rs. 15/- per month which housed Octroi Office run by it. The owner of the shop in dispute Sri Sanjay Kumar Mishra, on being contacted, told that the aforesaid shop is still under tenancy of Municipal Corporation, Moradabad and the lock thereon pertains to it only but he refused to give any written statement in this behalf.
In connection with the tenancy of the shop in dispute, an information was obtained by me at the Office of the Municipal Corporation. The employee present over there told that the shop in dispute has been under the tenancy of Municipal Corporation. The lock in the shop in dispute pertains to Municipal Corporation since the time when it housed Octroi Office or since the Octroi system came to en end. He refused to give any written statement in this behalf.
Therefore, in the aforesaid circumstance, the parties concerned be summoned & heard in relation to the shop being vacant." (emphasis added) (English translation by the Court)
16. This Court has to find out firstly, whether an inspection made, without any information to landlord, would render the proceedings valid for non-compliance of Rule 8(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the "Rules, 1972").
17. In this respect it would be appropriate to refer a decision of this Court in Shankar Singh Vs. Additional District Judge, Kanpur Nagar and others, 2005(61) ALR 492 wherein referring to Rule 8(2) of Rules, 1972, this Court has noticed certain illegalities committed by RCEO, which read as under:
"1. No notice before inspection under Rule 8 (2) was served upon landlord.
2. No notice before declaring the vacancy was served upon landlord.
3. No notice before allotment and after declaration of vacancy was served upon landlord.
4. No rent was fixed in the allotment order.
5. Outgoing tenant did not intimate his intention to vacate to the landlord.
6. No inquiry whether building had actually fallen vacant or not after passing allotment order was held by R.C. & E.O. as required by Rule 14.
7. Possession was not handed over by out going tenant to the landlord. It was illegally taken directly by the allottee from the out going tenant." (emphasis added)
18. This Court held that even a single violation of above would vitiate the allotment order. In taking this view this Court finds support from the decisions of this Court in R.L. Poddar Vs. A.D.J. 2003 (53) ALR 729, Ram Sumer Vs. A.D.J. 2004 (54) ALR 623, C. K. Nagarkar Vs. A.D.J. 2004 (2) ARC 349 and Kusum Lata Yadav Vs. A.D.J. 2005 (58) ALR 198. The above authorities have been referred to and relied by this Court recently in Neeraj Kumar Agrawal Vs. Arvind Mohan and others, Writ Petition No. 32684 of 1999, decided on 09.07.2012.
19. Even if this Court go to assume, since petitioner-landlord before making declaration of shop in dispute, had opportunity to file objections, which he actually did, and that would be a sufficient compliance of Rule 8(2) of Rules, 1972 and the impugned orders should not be interfered for the reason of such violation of Rule 8(2), still a more basic question up for consideration is, looking to the facts stated in report dated 24.05.2000 submitted by Rent Control Inspector, can it be said that there existed a vacancy in shop in question, in terms of Section 16(1)(a) or any other sub-clause of Section 16, so as to justify order dated 14.08.2002 passed by RCEO declaring vacancy, as also the subsequent orders impugned in this writ petition.
20. To appreciate this aspect it would be appropriate to have a glance over Section 16(1) whereunder the proceedings have been initiated and, it reads as under:
"16. Allotment and release of vacant building.--(1) Subject to the provisions of the Act, the District Magistrate by order--
(a) require the landlord to let any building which is or has fallen vacant or is about to fall vacant, or a part of such building but not appurtenant and alone, to any person specified in the order (to be called an allotment order); or
(b) release the whole or any par of such building, or any land appurtenant thereto, in favour of the landlord (to be called a release order):
Provided that in the case of vacancy referred to in sub-section (4) of Section 12, the District Magistrate shall give an opportunity to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case before making an order under clause (a)."
21. It is admitted case of all the parties that shop in dispute was let out to Nagar Nigam, Moradabad who was running its administrative office in respect to some of its statutory functions. It has not been stated by anyone as to when Nagar Nigam, Moradabad vacated the shop and handed over its possession to landlord or anybody else. In fact this is admitted by all the parties that possession of shop in dispute continued with Nagar Nigam, Moradabad when proceedings were initiated by RCEO in case No. 09 of 2000 which resulted in impugned orders. The factum of continued possession of Nagar Nigam, Moradabad has been admitted and fortified by Rent Control Inspector in its report dated 24.05.2000 also.
22. In order to attract Section 16(1)(a) one of the condition precedent is that building is or has fallen vacant or is about to fall vacant. The landlord specifically stated that shop in dispute is still in the tenancy of Nagar Nigam and had not been vacated by it. While declaring vacancy vide order dated 14.08.2002 the RCEO has not said anything. The order is cryptic and non-speaking. Even in his subsequent orders rejecting landlords objection, the RCEO has stated that since Octroi has already been abolished and thereafter Nagar Nigam has removed its belongings from the shop in dispute, and is not carrying any work thereat, therefore, a vacancy has occurred under Section 12(1) of Act, 1972. In order to record this finding he has simply said that he has considered the available evidence and other documents. This Court required learned counsel appearing for respondent no. 1 in First Petition and other counsels representing prospective allottees to demonstrate any evidence on record which may support the statement of fact recorded by RCEO that Nagar Nigam, Moradabad had removed its effects from the shop in dispute but they admitted that except of the bare assertion made by prospective allottees, there did not exist any material to support this finding.
23. So far as Rent Control Inspector's report is concerned, which is the sheet anchor and has been relied on by RCEO in passing the order dated 28.08.2002, he had no occasion to look into the shop itself since it was found locked at that time. He has also stated in the report, when enquired from the office of Nagar Nigam, some employee told that shop is still in tenancy of Nagar Nigam. There is no mention of the fact in inspection report that Nagar Nigam employee has told that effects of Nagar Nigam has been removed from shop and it is lying vacant. From the shop found locked at the time of inspection, nobody could have gathered any impression about what is lying inside the closed shop. There is no attempt made on the part of RCEO or Rent Control Inspector to probe from the office of Nagar Nigam, whether they have removed their effects wholly, substantially or partially from the building in dispute. On this aspect the report of Inspector is completely silent. The mere fact that Octroi has been abolished does not mean that tenant has vacated the shop by removing effects substantially, wholly or partially. Unless this fact that effects have been removed substantially from the building in dispute is proved, it cannot be said that there existed a deemed vacancy by virtue of Section 12(1) inasmuch as a deeming clause shall come into picture only when preceding conditions to attract deeming clause exist, as a matter of fact, so as to satisfy requirement of concerned provision from all corners.
24. In the present case I have no hesitation in saying that RCEO has acted in a most irresponsible and illegal manner in declaring vacancy in the shop in question without looking into the ingredients of Section 12(1)(a) of Act, 1972 and without looking to the fact, whether there existed any document or evidence wherefrom such an inference can be drawn that existing tenant, i.e., Nagar Nigam Moradabad has removed its effects substantially or not.
25. On page 43 of the paper book of First Petition, which is part of order dated 28.08.2002, the RCEO has referred to the affidavit of Smt. Sweta Malhotra who admittedly could have no personal knowledge of the fact, whether Nagar Nigam had removed its effects from the shop in dispute and if so how and when, though the shop at the time of inspection was found locked. Moreover, if there was any doubt on this aspect, Nagar Nigam Moradabad could have been required to clarify, whether its belongings/effects are still lying in the shop in dispute or not but admittedly no such attempt has been made by RCEO and instead he proceeded to pass the impugned orders on mere statement given by prospective allottees though unsubstantiated. The Rent Control Inspector simply says that shop is lying lock after abolition of Octroi but there is not even a whisper that Nagar Nigam has removed its effects substantially from the shop in question. He has treated that a shop lying lock means it is vacant. But that is not what would attract statutory provision of deemed vacancy under Section 12(1)(a). It requires something else. Unless a statutory provision which required some facts to exist, are shown to exist, such provision cannot be applied. When something is required to exist or to proceed or to be done in a particular manner, the same has to exist, performed or carried out in that manner alone and not otherwise and anything otherwise or in flagrant omission of requirement of statute would be illegal.
26. The findings of fact recorded by any statutory authority cannot be interfered by this court simply if there may be any other view possible but if such finding is not based on any evidence and is based on surmises and conjectures or is unfounded or unsupported by any evidence or otherwise perverse, it is no finding and such an order cannot survive. In the present case this Court also fails to understand, how and in what circumstances, within one or two years, with the change of official holding the office of RCEO, there occurred an occasion to declare vacancy in the same building wherein 1999 itself, having recorded a finding that there existed no vacancy, the proceedings under Sections 12 and 16were dropped.
27. The contention of learned counsel for the petitioner that RCEO in the present case has not acted impartially and unbiased but his approach is collusive, malicious in law and for reasons other than bona fide, sounds good and this Court is inclined to accept the same.
28. Sri P.K. Jain, learned Senior Advocate has referred to an earlier occasion also when against the same official, i.e., Sri Goverdhan Lal, the then RCEO this Court has passed serious strictures in Ram Nath Jetle Vs. Ist Additional District Judge, Meerut and another. 2004(2) ARC 800.
29. The Revisional Court also unfortunately having failed to look into these aspects of the matter, also has committed patent error in law, rendering revisional order also unsustainable.
30. In the result, the Writ Petition No. 35118 of 2005 is allowed. The orders dated 14.08.2002, 28.08.2002, 10.02.2004 and 30.03.2005 (Annexures- 6, 8, 9 and 11 respectively to the writ petition) are hereby quashed. Since petitioner has been forced to contest this frivolous litigation and that too for the reasons other than bona fide, I am satisfied that here is a case where petitioner is entitled for cost of Rs. 10,000/- against respondent no. 1.
31. The orders impugned in Writ Petitions No. 47924 of 2005 and 42865 of 2005, though stand set aside, but since the order declaring vacancy in the shop in question has already been set aside in connected Writ Petition No. 35118 of 2005, no cause of action thereafter survives to petitioner-prospective allottee in Second and Third Petitions and their applications for allotment have also rendered infructuous. Both the writ petitions thus stand disposed of in terms of above clarification.
Order Date :- 11.01.2013 AK